Just a little longer

Ask anybody involved in managing people what their top five most difficult issues are and I will bet that managing sickness absence will be one of them.

A case[1] that has recently been heard in the Court of Appeal highlights many of the reasons that make dealing with absence particularly tricky. In this case, the claimant, Ms O’Brien was a teacher who had been assaulted by a pupil. While she recovered quickly from that incident, she became increasingly dissatisfied with the way that the school dealt with the matter and eventually went off sick with stress.

Her employer tried to manage her absence, including arranging for a course of cognitive behavioural therapy, holding meetings with her and her trade union representative and referring her to occupational health. However, despite its best efforts, Ms O’Brien remained unfit for work and there were no adjustments that might help her return.

The school continued to try to understand Ms O’Brien’s prognosis, but she refused to attend another meeting, stating that she had nothing more to say and that it would only upset her. The school tried asking its questions in writing. In reply, Ms O’Brien said that the school should contact her GP as she wasn’t qualified to answer most of the questions. When the school did so, the GP replied that the school should contact Ms O’Brien as he wasn’t able to answer the questions.

The school’s HR Director, whom the Court of Appeal described as “entirely understandably” frustrated by this point with this lack of co-operation, decided to proceed with a formal capability hearing. Ms O’Brien did not attend the capability hearing but evidence was put forward on her behalf by her union representative that, while she was benefiting from a new course of treatment, no return to work could be confirmed. The school decided to dismiss. By this time, she had been absent for 13 months.

In spite of not having previously provided much, if any, information about the likelihood of a return to work in the near future, Ms O’Brien exercised her right of appeal and attended the hearing with a fit note from her doctor and a letter from a psychologist as evidence that she was now fit to return to full-time work! Perhaps entirely understandably confused by this, the appeal panel nevertheless upheld the dismissal.

Ms O’Brien brought tribunal proceedings, including claims for unfair dismissal and disability discrimination. The employment tribunal upheld her claims, but the Employment Appeal Tribunal overturned this finding, on the basis that the school should not have had to wait any longer for Ms O’Brien to be able to return to work.

The Court of Appeal has, however, upheld the employment’s tribunal’s decision that, while “borderline” the dismissal was both unfair and discriminatory. Crucially, the Court said that it was unreasonable for the school to disregard Ms O’Brien’s evidence (however unsatisfactory it might have been) that she was able to return to work without at least a further assessment by its own occupational health advisers.

The moral of this story? If an employee brings medical evidence to support their position, then however unlikely that evidence is, employers should always consider it. Even if that does mean having to wait just a little longer.

Our HRXchange Summer 2017 Managing Absence Masterclass will provide you with the legal and practical knowledge you need to manage both short and long term absence, proactively, fairly and efficiently.

This blog post was written by Helen Webster. For further information, please contact: